In the United States Court of Federal Claims

No. 13-762C

(Filed: February 20, 2014)

ROBERT A. GREEN,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

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Motion to Dismiss; Change of Legacy 

Treasury Direct Account Registration; 

31 C.F.R. § 357.21; 31 C.F.R. § 

357.42

Steven H. Jesser, Skokie, IL, for plaintiff.

Daniel B. Volk, Commercial Litigation Branch, United States Department of 

Justice, Washington, DC, with whom were Lisa Martin, Bureau of the Fiscal Service, 

Office of the Chief Counsel, United States Department of the Treasury, Parkersburg, 

WV, and Stuart F. Delery, Assistant Attorney General, for defendant.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 

Pending before the court is the motion of defendant, the United States (“the 

government”), to dismiss, pursuant to Rule 12(b)(1) or, in the alternative, 12(b)(6) of the 

Rules of the United States Court of Federal Claims (“RCFC”), the complaint filed by 

plaintiff, Robert A. Green (“Mr. Green”). In his complaint, Mr. Green “claims 

entitlement to damages from defendant United States of [America] for funds erroneously, 

mistakenly, and negligently paid to another,” by the government from a Legacy Treasury 
Direct1 account (“Legacy Account”) in the United States Treasury (“Treasury”). Comp. 

at 1, ECF No. 1. The United States argues that the complaint does not state a plausible

claim against the United States within the Court’s jurisdiction and thus the complaint 

should be dismissed. In the alternative, the government argues that, even if this court has 

jurisdiction over the claim, the plaintiff cannot state a claim for which relief can be 

granted. For the reasons that follow, the court finds that this court does not have 

jurisdiction over plaintiff’s claims; thus, the case must be dismissed under RCFC

12(b)(1) because the subject regulations do not provide a right to damages. 

I. BACKGROUND

According to the complaint, Mr. Green was once named as the sole beneficiary of 

the Legacy Account2 established by his aunt, Ann C. Spiegel. Compl. at ¶ 4.

Apparently, when she first established the account, it was payable on death (“POD”) to 

Mr. Green. Id. On August 13, 2008, Ms. Spiegel executed a durable power of attorney 

appointing Mark Samuels, who was also her nephew, as her attorney-in-fact.3 App. to 

1 “The Legacy Treasury Direct system is a non-Internet-based book-entry system maintained by 

Treasury for purchasing and holding marketable Treasury securities as book-entry products.” 31 

C.F.R. § 357.0(a)(2); see generally TreasuryDirect.gov, Legacy Treasury Direct, 

http://www.treasurydirect.gov/indiv/myaccount/myaccount_legacytd.htm (last visited Feb. 20, 

2014)

2 As noted above, Legacy Accounts are maintained by the United States Treasury for purchasing 

and holding marketable Treasury securities as book-entry products. 31 C.F.R. § 357.0(a)(2).

3 The government has provided the court with an appendix containing four documents: (1) Ms. 

Spiegel’s power of attorney; (2) the transaction request to change the registration of Ms. 

Spiegel’s account; (3) a computer print-out from the Bureau of the Fiscal Service in Parkersburg, 

West Virginia at 2:17 p.m. Eastern Time on October 14, 2008; and (4) Ms. Spiegel’s death 

certificate.

2

 
Mot. to Dismiss at 22, ECF No. 5; see Compl. at ¶ 7, 9. Thereafter, on September 25, 

2008, an attorney, Howard S. Bornstein, electronically submitted a “Legacy Treasury 

Direct Transaction Request” to the Treasury Retail Securities Site on behalf of Ms. 

Spiegel requesting a registration change from “Ann C. Spiegel POD Robert Green to Ann 

C. Spiegel, Trustee for the Ann C. Spiegel Revocable Trust [“Spiegel Trust”] dated 

August 13, 2008.” App. to Mot. to Dismiss at 25-27; see Compl. at ¶ 9. The request was 

signed for Ms. Spiegel by Mr. Samuels, her attorney-in-fact. Id. According to the 

records from the Bureau of the Fiscal Service in Parkersburg, West Virginia, the Treasury 

processed the request and changed the registration on October 14, 2008 at 2:14 p.m. 

Eastern Time. App. to Mot. to Dismiss at 28; see Compl. at ¶ 10. Ms. Spiegel died in 

Los Angeles County, California on that same date, October 14, 2008, at 3:30 p.m. Eastern 

Time. App. to Mot. to Dismiss at 29; see Compl. at ¶ 2.

According to Mr. Green, Mr. Samuels violated California state law when he

signed and had submitted the forms used to change the registration on Ms. Spiegel’s

Legacy Account. Mr. Green claims that by virtue of the government making the 

registration change he was forced to share his inheritance with Mr. Samuels and Barbara 

Bautista, who was Ms. Spiegel’s niece and Mr. Samuel’s sister. These two individuals,

along with Mr. Green, were the three beneficiaries of the Spiegel Trust.

Mr. Green sued Mr. Samuels for tortious inference with an expected inheritance

when he learned in 2010 that the Legacy Account had been originally established on 

March 3, 2008 and registered “Ann C. Spiegel POD Robert A. Green.” That lawsuit was 

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settled before this case was filed. The plaintiff claims, however, that he remains 

“damaged by more than $375,000.00.”

In this suit against the United States, Mr. Green alleges that the government 

violated his rights to Ms. Spiegel’s Legacy Account by processing the registration change 

without confirming that the request complied with California state law and seeks 

monetary damages on this basis. The plaintiff also contends that the government’s 

actions were negligent because the government failed to investigate Mr. Samuel’s 

authority before changing Ms. Spiegel’s account. He further contends that Treasury’s 

actions in changing the account upon receiving September 25, 2008 request and without 

notice to plaintiff amounted to a violation of his due process rights under the Fifth 

Amendment. 

II. DISCUSSION

It is well-settled that the burden is on the plaintiff to prove jurisdiction by a 

preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 

F.2d 746, 748 (Fed. Cir. 1988). Ordinarily, undisputed factual allegations contained in 

the complaint must be treated as true. See Henke v. United States, 60 F.3d 795, 797 

(Fed. Cir. 1995). However, in resolving disputes regarding jurisdictional facts, the court 

may look beyond the pleadings. See Rocovich v. United States, 933 F.2d 991, 993 (Fed. 

Cir. 1991). If the Court finds that it lacks subject-matter jurisdiction, it must dismiss the 

complaint. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).

Under the Tucker Act, this court has “jurisdiction to render judgment upon any 

claim against the United States founded either upon the Constitution, or any Act of

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Congress or any regulation of an executive department, or upon any express or implied 

contract with the United States.” 28 U.S.C. § 1491(a) (2012). Mr. Green does not allege 

that he had a contract with the United States. Rather, he bases his claim on Treasury 

regulations set forth at 31 C.F.R. §§ 357.20 to 357.32,

4 which he alleges were violated in 

contravention of California state law when he was removed as the POD beneficiary on 

Ms. Spiegel’s Legacy Account. The government argues that this court does not have 

jurisdiction over this claim because Mr. Green does not have any right to direct payment 

as the sole beneficiary under the above-cited regulations after the transfer of registration 

to the Spiegel Trust. Further, the government argues that the United States is immune 

from liability, and thus damages, for actions that it takes in making changes to Legacy 

Accounts in accordance with transfer requests.

When a complaint is filed, the court must determine if the regulations which serve 

as the basis for the claim are money-mandating. Fisher v. United States, 402 F.3d 1167,

1173 (Fed. Cir. 2005). If the court determines that the source identified is not moneymandating, the court must dismiss the case. Id. Here, the government argues that Mr. 

Green’s complaint must be dismissed because, under the applicable regulations, POD 

beneficiaries like Mr. Green do not have any rights “[d]uring an owner’s lifetime [and 

that] a transaction request may be executed by the owner without the consent of the 

beneficiary.” 31 C.F.R. § 357.21(b)(2)(iii). As such, the government continues, Mr. 

Green had no ownership rights as the designated sole beneficiary to Ms. Spiegel’s Legacy 

4 The plaintiff mistakenly identified a different set of regulations in his complaint. He now 

agrees that the above-cited regulations are the correct regulations to be applied. See Resp. to 

Mot. to Dismiss at ¶ 19.

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Account before Ms. Spiegel’s death. Further, the government argues, after the 

registration for Ms. Spiegel’s Legacy Account was changed, he no longer had a right to 

direct payment as the POD beneficiary. Rather, Mr. Green was only entitled to monies 

through the Spiegel Trust.

The court agrees with the government. The death certificate submitted by the 

government establishes that Ms. Spiegel died on October 14, 2008 at 12:30 p.m. Pacific 

Time, after the Legacy Account change was made and Mr. Green was removed as the 

POD beneficiary. Mr. Green therefore had no right to direct payment by the government

as the POD beneficiary upon Ms. Spiegel’s death. After the registration was changed, 

Mr. Green’s right to payment was only from the Spiegel Trust. Indeed, Mr. Green is not 

seeking to compel a payment as the POD beneficiary of Ms. Spiegel’s Legacy Account.

Rather, as discussed below, he is challenging the government’s actions in changing Ms. 

Spiegel’s Legacy Account registration to the Spiegel Trust.

With regard to the registration change, the government argues that the case must 

be dismissed because there is no right to damages under Treasury regulations for actions 

taken by the United States in making changes pursuant to transfer requests. Thus, the 

government argues, the United States cannot be sued for allegedly “disregarding

[California] state law in allowing the change of beneficiary,” as Mr. Green contends in 

his complaint. Treasury regulations expressly provide that the United States

may rely on the information provided in a tender, transaction request form, 

or Transfer Message, and [is] not required to verify the information. The 

Department . . . shall not be liable for any action taken in accordance with 

the information set out in a tender, transaction request form, or Transfer 

Message, or evidence submitted in support thereof.

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31 C.F.R. § 357.42. Because the regulations clearly state that the government cannot be 

liable for “any action” taken in accordance with the information it receives in the 

transaction request form, the government correctly argues that Mr. Green has not 

identified a money mandating source for his claim. Contrary to Mr. Green’s contentions, 

there is no exception to the government’s immunity from liability under the regulation

where violations of state law or negligence by Treasury are alleged. The United States 

cannot be liable for “any action” it took in accordance with the information it received on 

the change form submitted and signed by Mr. Samuels on Ms. Spiegel’s behalf. Because 

the government has immunity from liability for actions taken by the Treasury under the 

regulations at issue here, Mr. Green has failed to identify a money-mandating source for 

his claims.

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III. CONCLUSION

For the foregoing reasons, the Court must dismiss the complaint under RCFC 

12(b)(1). The government’s motion to dismiss is therefore GRANTED. The clerk is 

directed to enter judgment accordingly. Each party to bear its own costs.

5 The court notes that Mr. Green also alleges that his “claim is also governed by the Fifth 

Amendment to the United States Constitution, which provides in pertinent part that “no person 

shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. Const. 

amend. V. The portion of the Fifth Amendment that Mr. Green relies upon—the Due Process 

Clause—does not give rise to a money-mandating claim. Acadia Tech., Inc. v. United States, 

458 F.3d 1327, 1334 (Fed. Cir. 2006) (“A violation of due process rights, however, does not give 

rise to a claim for money damages against the United States in the Court of Federal Claims.”).

Similarly, this court does not have jurisdiction over Mr. Green’s claims sounding in tort, 

including his claims for “financial negligence.” The Tucker Act excludes from this court’s 

jurisdiction claims sounding in tort. 28 U.S.C. § 1491(a); e.g. Sounders v. South Carolina Pub. 

Serv. Auth., 497 F.3d 1303, 1307 (Fed. Cir. 2007).

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IT IS SO ORDERED.

s/Nancy B. Firestone 

NANCY B. FIRESTONE

Judge

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